Board of Supervisors : October 24, 2000

SUNSHINE ORDINANCE TASK FORCE

MINUTES

Tuesday, October 24, 2000

4:00 p.m.

City Hall, Room 408

Task Force Members

Seat 1 Judith Appel Seat 8 Robert Planthold

Seat 2 Bruce Brugmann Seat 9 Daniel Guillory

Seat 3 Vince Courtney Seat 10 Paul Hogan, Vice Chair

Seat 4 Marie-Lorraine Mallare Seat 11 Sue Cauthen

Seat 5 Tuesday Ray Ex-officio Gloria Young

Seat 6 Hilda Bernstein, Chair Ex-officio Vacant

Seat 7 Ted Kowalczuk

Roll Call

Present: Appel, Courtney, Bernstein, Kowalczuk, Planthold, Guillory, Hogan, Cauthen, Young

Absent: Brugmann, Ray, Mallare

1. Approval of Minutes of September 26, 2000

Approved. (Planthold/Kowalczuk) (Courtney no) (Brugmann, Ray, Mallare absent)

2. Report from Chair (Hilda Bernstein)

Report given. (See attached)

Appel entered the meeting at 4:07 p.m.

3. Report of Rules Committee (Bob Planthold, Chair)

Bob Planthold submitted the recommendation from the Rules Committee for the suggested points for the Annual Report. Motion adopted approving the report with one change-that the sentence "Ad Hoc committee on email communications" be changed to say "Special Committees as needed.") (See attached report) (Appel/Kowalczuk) (Brugmann, Ray, Mallare absent)

Bob Planthold submitted the recommendation from the Rules Committee for suggested responses to the Civil Grand Jury Report.

Finding 10: Clerk of the Board Gloria Young suggested the recommendation "Request the Clerk of the Board to send yearly reminders to agencies that are required to file mandated reports with the Board of Supervisors to file the reports with the Clerk of the Board for distribution to the Board of Supervisors’" that this request be made of the Mayor since the departments under this organization report directly to the Mayor. Bob Planthold stated it was the suggestion of the Rules Committee that this be a reminder.

Gloria Young stated she would agree with Finding 10 as long as it is understood it is a "request" and not a "mandate."

Motion adopted approving the recommendation of the Rules Committee for suggested responses to the Civil Grand Jury Report. (See attached report) (Kowalczuk/Cauthen) (Brugmann, Ray, Mallare absent)

4. Report of Public Education and Information Committee (Paul Hogan, Chair)

Informational report (Committee did not have a quorum) on public information reports; brochure dissemination; annual report suggestions; frequently asked questions list.

5. Report of Complaint Committee (Judy Appel, Chair)

Information report on meeting with Chair; next Complaint Committee meeting to have recommendations on complaint process; briefly discussed Davis/Reno complaint.

6. Report from Supervisor of Public Records (City Attorney): Annual review and report. (Dorji Roberts)

Report given.

Public comment from John Jenkel stating he would resubmit his complaint listed on the report as Item #6; stated Complaint #11 was never considered by Sunshine Ordinance Task Force.

Motion adopted approving the Report of the Supervisor of Public Records. (See attached) (Hogan/Guillory) (Courtney no) (Brugmann, Ray, Mallare absent)

7. Hearing of John Jenkel: Complaint #13: Complaint that three-minute time limit not uniformly applied by Small Business, Economic Vitality and Consumer Services Committee at its meeting of August 10, 1999

John Jenkel, Complainant, explained his Complaint #13 regarding the Small Business, Economic Vitality and Consumer Services Committee regarding legislation passed that never received public comment; he was not able to make comment on an item; time limit was imposed in the middle of presentation; two items combined; the two items were not related.

Michael Farrah, Legislative Aide to Supervisor Newsom explained Supervisor Newsom is aware of the rules of the Sunshine Ordinance in uniformly applying public testimony; Supervisor Newsom explains the rules of public comment stating everyone will have the same amount of time; the two items might have been were called together; the items were not combined; Supervisor Newsom knows that letters are not a substitute for public comment; perhaps a Board rule could be adopted that allowed for a two sentence statement to be read before meetings to explain the Sunshine Ordinance before every committee meeting that would make it clear to all involved what the rules were and bring to light what the Sunshine Ordinance does.

Michael Farrah stated Supervisor Newsom would look forward to recommendations from the Task Force.

Gloria Young stated when items are combined public comment is usually given a one-time period, i.e., three minutes rather than six minutes; the Clerk of the Board is updating the Rules of Order; this particular item is not currently in the Rules of Order.

Vince Courtney stated he commended Mr. Farrah for suggesting the two-sentence rule; is a proactive way to explain the rule; feels we should move forward on this offer.

Task Force members expressed concern about items being combined and public comment being reduced.

Judy Appel suggested the Task Force possibly look into recommending the Board adopt a rule that would allow for greater public comment.

Motion adopted for Order of Determination: The Sunshine Ordinance Task Force shall work with the Clerk of the Board of Supervisors and others as appropriate to draft recommended changes to the Sunshine Ordinance or the Board Rules of Order regarding public comment length, particularly as it pertains to agenda items that are called together. (Appel/Courtney) (Kowalczuk no) (Brugmann, Ray, Mallare absent)

Paul Hogan requested information from the City Attorney regarding the granting of relief when a person is cut off from public comment. Jackie Minor stated public comment is not a provision that would render the decision of the policy body voidable. Based on the Brown Act it is unlikely there would be any kind of punitive remedy that would be granted by a court and that this body has no jurisdiction as such to take affirmative, punitive action.

Guillory moved to amend Order of Determination: Based on the language of the ordinance as it exists, there was not apparently a violation of the Sunshine Ordinance at this meeting. Motion withdrawn.

Motion adopted to amend Order to Determination to include: The Sunshine Ordinance Task Force determines that insufficient evidence was provided to show a violation of the Sunshine Ordinance relative to the facts in this petition. (Guillory/Planthold) (Brugmann, Ray, Mallare absent)

8. Hearing of John Jenkel: Complaint #14: Complaint that Port Commission agenda description inadequate for Item 8 A, June 13, 2000 Agenda

John Jenkel, Complainant, explained his Complaint #14, stating unaccountability of San Francisco Port Commission; violation of agenda description regarding public attraction use; in fact the business was for commercial amusement; commercial amusement is not public attraction; this makes this resolution voidable in a court of law; agenda said one thing and the Port Commission did another.

Vince Courtney stated we are not recommending disposing of public comment.

Kurt Watts, Development Project Coordinator for the Port of San Francisco: our position is that the agenda was accurate in the description of the agenda item and discussion that followed; some of the other public attractions both have ticketed admission and unticketed admission; distinction between whether or not it is a profit or nonprofit group or ticketed or non-ticket attraction speaks to the issue; public attraction fits all categories and item description fits the agenda.

Bob Planthold asked Mr. Watts about source and authority of distinction between public attraction and ticketed amusement or public attraction and private entertainment for consideration and free attraction.

Mr. Watts stated not aware of any guidelines that would specify that public attractions should either be free and must be open to a non-ticketed type of situations.

Mr. Jenkel stated the purpose of the Port tideland is not for commercial gain; it is for preserving the natural attraction.

Motion adopted for Order of Determination: The Sunshine Ordinance Task Force respectfully denies this petition. (Hogan/Courtney) (Brugmann, Ray, Mallare absent)

9. Hearing of John Jenkel: Complaint #15: Supervisor’s Kaufman’s denial of a public records request for a private attorney legal opinion

John Jenkel, Complainant, explained his Complaint #15, explaining possible conflict of interest of Supervisor Kaufman voting on Bryant Square; Supervisor Kaufman stated she had a letter stating no conflict of interest; as result of Prop G this document affected a public presence; maintain this is part of the public record because it was relied upon for a vote on Bryant Square; asking for justification for withholding document; this complaint is not for Bryant Square only.

Bob Planthold asked about statement that opinion was circulated through supervisor offices. Mr. Jenkel stated he was told this by the spokesman for the Mission Anti-Displacement Coalition-not a city employee.

Bob Planthold asked why a private counsel can tell Supervisor Kaufman that she can do this and no one can know why and the City Attorney opinion is ignored.

Jackie Minor stated the document is not a document that the City Attorney’s Office has ever seen; Supervisor Kaufman indicated the opinion she is referring to is the opinion of a private attorney that she retained for these purposes; this is not anything the City Attorney’s Office knows anything about or that we have given advise on; we are not talking about a document that was prepared or has been seen by the City Attorney’s Office.

Gloria Young stated she was in attendance at the meeting; Sue Hestor asked specifically under her comments about Supervisor Kaufman’s ability to participate and if she did in fact have a conflict of interest; Supervisor Kaufman indicated that she did not and clarified with the City Attorney that she had not asked the City Attorney for an opinion on that and that she had sought private counsel. Supervisor Bierman’s comment was with respect to a question if there had been a Brown Act violation with respect to notification, which was called into question; Gloria Young further stated that she advised Supervisor Bierman there had not been a Brown Act violation.

Daniel Guillory stated the focus should be if the document is something someone should get access to.

Judy Appel asked Mr. Jenkel if he made a claim to the Ethics Committee. Mr. Jenkel stated no. Judy Appel asked if he had spoken to anyone who had seen the document. Mr. Jenkel stated no.

Daniel Guillory asked Jackie Minor if she had read the letter from Supervisor Kaufman. Jackie Minor read the 10/17/00 letter from Supervisor Kaufman into the record. (See attached)

Sue Cauthen asked if subject counsel letter of Supervisor Kaufman is protected by the attorney/client privilege. Jackie Minor stated that advise is subject to attorney/client privilege.

Judy Appel stated there apparently was some analysis prepared by Sue Hestor that the advice is public and would like to hear Sue Hestor’s rationale.

Bob Planthold asked if Supervisor Kaufman had not voted, would it have changed the result. Sue Cauthen stated she watched the proceedings on television, and was her opinion it would not have changed the result.

Judy Appel stated the question is-is this document public.

Buck Delventhal, City Attorney’s Office, stated when the City Attorney’s Office gives advice to the Board of Supervisors on conflict of interest issues, it is confidential; Supervisors can choose to get counsel from other sources and they are not required by law to share that information with anybody.

Hilda Bernstein stated she has heard that no one has seen the document.

Gloria Young stated the issue does not indicate document, it indicates advice.

Motion adopted for Order to Determination to include: The Sunshine Ordinance Task Force determines that insufficient evidence was provided to show a violation of the Sunshine Ordinance relative to the facts in this petition. (Kowalczuk/Planthold) (Appel no) (Brugmann, Ray, Mallare absent)

10. Hearing of Davis/Reno, representing Local 21, AFL-CIO: Request for Compensatory Time Records by Local 21, AFL-CIO, from the Human Rights Commission

Jackie Minor excused herself and Buck Delventhal represented the Task Force on this complaint.

Janene Murtha, representing the Complainant, explained that numerous requests had been made to the Human Rights Commission beginning February 2000 for records; there have been several subsequent requests and we have received nothing; City Attorney’s Office have stated by letter of October 17 that the records requested are of a public nature and would be made available to us as soon as possible; this has taken an extremely long time; after records are found to be public, the Task Force will assure compliance; the letter from the City Attorney was dated October 17 and we still have received no documents; request the Task Force take appropriate further action; request five days from today that we receive the documents.

Toni Delgado, Special Assistant and Custodian of Records for the Human Rights Commission, stated they did receive the public records request in February; there was confusion with the City Attorney’s Office whether these documents were to be produced or not; subsequently the City Attorney’s Office has stated these documents should be produced; the records have been located and they will be produced in the next couple of days; our department has been inundated with public records requests; unfortunately we have been fairly understaffed in the Administrative Unit; we are working with the City Attorney’s Office to remedy our tardiness in public records requests; I will have the records to them by Thursday.

Vince Courtney left the meeting at this time.

Task Force concern about the number of times requests were made for these records with no response. Toni Delgado stated each time requests for the records were made, she made contact with the City Attorney’s Office; she was under the impression the City Attorney’s Office was to contact the Complainant.

Bob Planthold asked about staffing; if Toni Delgado was on vacation, was there persons to cover. Toni Delgado stated yes; did not know why response went unanswered during her absence.

Hilda Bernstein stated she was concerned about no response.

Judy Appel stated she would like timeline to begin running from now.

Sue Cauthen stated she would like motion to include some kind of censure and contain a deadline for submittal of records.

Motion adopted for Order of Determination: The Sunshine Ordinance Task Force finds that the Human Rights Commission has willfully failed to comply with the obligation to produce the records requested in this appeal in a timely fashion and orders the Human Rights Commission to produce the records within five days of this hearing. (Cauthen/Kowalczuk) (Brugmann, Ray, Mallare, Courtney absent)